Jacobsohn on Religious Emergencies

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38 INDIAN J. CONST. L.

B OMMAI AND THE JUDICIAL POWER : A V IEW FROM THE

UNITED STATES

Gary Jeffrey Jacobsohn *

“The Indian Constitution is both a legal and socialdocument. It provides a machinery for the governance of the country. It also contains the ideals expected by thenation. The political machinery created by the Constitutionis a means to the achieving of this ideal.”1

I. American Prelude

In an interview conducted after leaving the United StatesSupreme Court, Chief Justice Earl Warren was asked to name the most important case decided during his tenure on the Court. His choice of Baker v. Carr was doubtless a surprise to many people.2 The Court over

which he presided had been the scene of many landmark cases,including one – the school desegregation decision – that had changedthe face of American jurisprudence, and perhaps American society as

well. Why then choose Baker , a ruling limited to the question of whethermalapportionment was an issue reviewable by the courts? To be sure,the Court made it possible for changes that could potentially providea new set of answers to the classic question of who gets what, when,

and how in American politics, but believing it would have suchconsequence arguably had more to do with wishful thinking than coldpolitical calculation.

Warren’s answer seems de fens ible, however, even if oneconcludes that the “reapportionment revolution” turned out not tobe nearly so revolutionary as its most devoted advocates had onceimagined. Thus in ruling that the Court was not precluded fromentering the “political thicket” of legislative districting, the majority made a powerful statement about the Court’s role in determining themeaning of contested regime principles, a point more candidly acknowledged – if regretted – in the dissenting opinion of JusticeFelix Frankfurter: “What is actually asked of the Court in this case is tochoose…among competing theories of political philosophy….”3. ForFrankfurter, the rejection of the “political question” doctrine as applied

* Patterson-Banister Professor of Government and H. Malcolm Professor of Constitutionaland Comparative Law, University of Texas at Austin.

1. S.R. Bommai v. Union of India , (1994) 3 SCC 1, 65.2. N.Y. Times , June 26, 1969 (city ed.), 17. See also, Earl Warren, The Memoirs of Earl

Warren (Garden City, NY: Doubleday, 1977), 306.3. Baker v. Carr, 369 U.S. 186, 300 (1962).



39

to the apportionment issue in effect invited the Court to revive theGuaranty Clause (Article IV, Section 4) by affirming a judicial role indefining the meaning of “a Republican Form of Government.” The

Justice was not distracted by the “equal protection of the law” approachused by the proponents of reapportionment, for, “[t]o divorce equalprotection from ‘Republican Form’ is to talk about half a question.”4

Any “inquiry into the theoretic base of representation” entailed a judgment as to what was an acceptably republican state.

Moreover, it was a judgment with notable symbolic and practicalimportance for the configuration of federalism. At a time when thestanding of the national government was being challenged overfundamental issues of equality, imposition by the federal courts of auniform constitutional standard to the structure of sub-nationalgovernmental institutions conveyed an unambiguous confirmation of the supremacy and moral authority of federal power.5 As Anthony Lewispointed out, more than the character of American legislatures, theissue in Baker was “the place of the Supreme Court in the Americansystem of government.”6 Indeed, the Chief Justice might well haveselected Baker v. Carr for the occasion it provided the Court to place itsimprimatur on certain basic issues of constitutional identity. And withits certification of political representation as a problem appropriately

within the domain of judic ial supervi sion , Warren sure ly was

encouraged by the Court’s new prospects for shaping the process of lawmaking in accordance with constitutionally derived standards.7 But ultimately it was in the enabling of other institutional actors to pursuesocially progressive policies that the greatest potential for making adifference in American society lay, a prospect ominously understoodby Frankfurter’s fellow dissenter, Justice John Marshall Harlan, whothought it a mistake that “the Court should ‘take the lead’ in promoting

4. Ibid., 301.5. Consider, for example, the observation of the most serious critic of national power in

American histor y, John C. Calhoun. “Give to the Federa l Government the right toestablish its own abstract standard of what constitutes a republican form of government,

and to bring the Government of the States, without restrictions on its discretion, to thetest of this standard, in order to determine whether they be of a republican form or not,and it would be made the absolute master of the States.” Richard K. Cralle, ed., The Works of John C. Calhoun , Vol. 6 (New York: D. Appleton, 1855), 221.

6. Anthony Lewis, “Earl Warren,” in Richard H. Sayler, Barry B. Boyer and Robert E. Gooding, Jr., eds., The Warren Court: A Critical Analysis (New York: Chelsea House, 1968), 31.

7. “If everyone in this country has the opportunity to participate on equal terms witheveryone else and can share in electing representatives who will be representative of the entire community and not of some special interest, then most of these problemsthat we are now confronted with would be solved through the political process ratherthan through the courts.” Quoted in the N.Y. Times , June 26, 1969 (city ed.), 17.

Bommai and the Judicial Power: A View from the United States




reform when other branches of government fail to act.” Warren’s bighope was that the Court’s intervention would ignite a surge of politicalactivity at all levels of government that would, where necessary,transform the social order; and the significance of Baker v. Carr as aconstitutional moment was lodged in this hope.

II. Constitutional Aspirations, Constitutional Moments

If in retrospect, the reapportionment decision appears to us asless momentous than it might have at the time it was rendered, it islargely because of the difficulty of translating the Americanconstitutional mandate of formal equality into substantive equality.

Achieving such a translation must depend solely on the vagaries of politics unassisted by the directed force of constitutional command.One need not embrace the simplistic view of the US Constitution asan essentially neutral framework document to recognize that itscommitment to egalitarian goals manifests itself only in the most creativeexercises of constitutional interpretation.

Such is not the case in India. Here, in explicit ways, theconstitution is a potentially subversive presence in the social order,leaving the institutions of civil society vulnerable to transformativeattacks emanating from a document that is fundamentally antagonisticto the status quo. These institutions are not left totally unprotected,

and their defenders will find ample political and legal (includingconstitutional) resources with which to secure them from the ravagesof radical reconstruction. But to the degree that the preservativepresumption is slighted in constitutional design, defending the socialorder will be a more formidable task than in circumstances where theimprimatur of constitutional legitimacy extends to the prevailingconfigurations of that order. Inherent in the Indian constitutionalcondition is a plainly articulated gap between foundational ideals andexisting realities; in this alternative understanding much more isinvolved than just an implicit reminder of the inevitable disharmoniesbetween law and society, namely the constitutional obligation assigned

to the state to resolve the severest of these contradictions.This obligation is inscribed in the Constitution in many ways,

including the various invitations extended to the state to regulatereligious practices in the interest of social welfare and equality.8 Thedepth of religion’s penetration into a social structure that was by any reasonable standard grossly unjust, meant that the framers’ hopes for

8. I discuss these provisions at length in The Wheel of Law: India’s Secularism in Comparative Constitutional Context (Princeton: Princeton University Press, 2003).



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a democratic polity would have to be accompanied by State interventionin the spiritual domain. But the most visible constitutional expressionof the aspirations that stamped the document with a distinctive identity is to be found in Part IV, the Directive Principles of State Policy. Theprovisions contained in this section are not enforceable by the judiciary,but, as stated in Article 37, “…the principles therein laid down arenevertheless fundamental in the governance of the country and it shallbe the duty of the State to apply these principles in making laws.” Ashas been noted with only slight exaggeration, the “Directive Principlesof State Policy constitute the soul, the very spirit of the ethos of theConstitution. These principles are the epitomes of social policy

whereupon the State has been enjoined to embark on the goals of distributive justice.”9

Enter the judiciary. The Indian Supreme Court has beendepicted as an institution constitutionally intended to function as “anarm of the social revolution,”10 whose mission, according to a prominent former justice of that Court, is to serve as a “radical fiduciary andredemptive institution of the people.”11 To be sure, it would besurprising to find constitutional arrangements that did not includeboth preservative and transformational attributes. Thus in India socialreform must always be balanced against the demands of multiplecultures, whose resistance to changes threatening to their way of life

finds support in constitutional provisions that explicitly endorse culturalpreservation. Such provisions are as much an expression of politicalreality as they are a measure of constitutional acquiescence, but they do serve in arguably salutary ways to moderate and restrain the radicaltransformational impulse. Or stated otherwise, the presence of these

9 . Sudesh Sharma, 10. Directive Principles and Fundamental Rights: Relationship and Policy Perspectives (New Delhi: Deep & Deep Publications, 1990), 5. Of course, constitutionalprovisions that are important in one setting may not perform the same role elsewhere.Indeed, they might not exist in other places. There are no directive principles, forexample, in the South African Constitution, a document that must be considered anobvious candidate for inclusion in any grouping of nations where the constitutionconfronts a social order hostile to the document’s fundamental commitments. On theother hand, the directive principles in the Irish Constitution served as a model for the

framers of the Indian Constitution, but they have had practically no influence on thesubstance of a jurisprudence that reflects the priorities of the acquiescent constitutionalism within which it has evolved.

10. Granville Austin, The Indian Constitution: Cornerstone of a Nation (Oxford: Oxford University Press, 1966), 80. As Upendra Baxi has pointed out to me, there is something quaint about coupling courts, which are theatres of state adjudicatory power, with a revolutionary mission. The point is well taken, although Austin’s use of the metaphor is, in his

judgment, a fair representation of what many framers intended.11. V. R. Krishna Iyer, “Towards an Indian Jurisprudence of Social Action and Public Interest

Litigatio,” in Indra Deva, ed., Sociology of Law (New Delhi: Oxford University Press,2005), 297.





preservative commitments in a predominantly confrontationaldocument means that the enforcement of the constitution’s militant agenda should occur within the parameters of feasibility. That isperhaps the best way of understanding the placement of the uniformcivil code within the non-justiciable section of Directive Principles.12

While the remedial juri sprudence implic it in the Court’stransformative responsibilities is constitutionally prescribed within themilitant folds of the document, the Court has not embraced the roleeffortlessly or consistently. Along the path of its partial fulfillment of this purpose are several constitutional moments that have contributedsubstantially to the emergence of the Court as a key institutionalpresence in the shaping of Indian policies in conformity withconstitutional aspirations. Any one of them could be cited as the decisiveturning point in the narrative of Indian constitutionalism. Perhaps themost obvious choice is Kesavananda Bharati v. State of Kerala 13 called“the greatest triumph of the Supreme Court as an institution….”14. Inits assertion of review power over the process and substance of constitutional amendments, the Court, as Upendra Baxi has said,performed “a remarkable feat of judicial activism, unparalleled in thehistory of world constitutional adjudication.” 15. Of course, anachievement of such noteworthiness – particularly one enhancing thepolitical power of the judiciary — will engender mixed reviews. For

example, a not atypical negative assessment worries about the effect of the judgment on the very fabric of constitutional government. “Priorto Kesavananda Bharati , the Constitution, with all its checks andbalances, was considered supreme. The Supreme Court has emergedas the strongest wing of the state with unlimited and illimitable power.”16

12. In the United States, the non-acquiescent parts of the Constitution are largely embodiedin the post-Civil War amendments. Acquiescence in a social order that tolerated slavery

was itself an anomaly in a Constitution predicated on principles opposed to that institution.It took a bloody war to destroy slavery, but to eradicate the racial hierarchies that wereengrained in the social order required a new constitutional militancy. This militancy may be seen in commitments implicit (perhaps even explicit) in the three amendments– to nationalizing the issue of racial equality, to penetrating the barrier separating public

and private realms, and to promoting legislative solutions to the challenge of socialreconstruction.13. AIR SC 1461 (1973).14. Fali S. Nariman, “Judicial Independence in India,” in Venkat Iyer, ed., Human Rights and

the Rule of Law (New Delhi: Butterworths India, 2000), 30. Nariman goes on: “[T]his wasthe real turning point for the Indian judiciary – a glorious manifestation of itsdetermination to retain custody and control of the Constitution, which, in the 1970s,

was in grave danger of being usurped by Parliament.” Ibid., 30.15. Upendra Bax i, Courage, Craft and Contention: The Indian Supreme Court in the Eighties

(Bombay: N. M. Tripathi Private, 1985), 65.16. P. P. Rao, “The Constitution, Parliament and the Judiciary,” in Pran Chopra, ed., The

Supreme Court Versus the Constitution: A Challenge to Federalism (New Delhi: Sage Publications,2006), 73.



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Whether viewed negatively or positively, Kesavananda standsclearly as a watershed moment in Indian constitutional development.

Its eminence is such that the seminal case I have chosen to focus on inthis article could not have occurred in its absence. Thus the Supreme

Court’s decision in S.R. Bommai v. Union of India , which addressed thelegality of the Centre’s dismissals of six state governments in 1992,

represents a critical turning point in Indian jurisprudence, albeit onethat builds upon the foundations of the earlier ruling. But let me

anticipate at the outset the objection that a foundational case shouldalways be viewed as greater in significance than its progeny.17

At the core of Kesavananda is the “basic structure” doctrine,according to which specific features of the Constitution are deemed

sufficiently fundamental to the integrity of the constitutional project

to warrant immunity from drastic alteration. Under the theory that

constitutional change must not destroy what it modifies, the Court

affirmed its institutional authority to invalidate any constitutionalamendment whose adoption would, in its judgment, result in radical

transformation of regime essentials. The political and jurisprudentialimplications of this unenumerated power were extraordinary, easily

making the presumed counter-majoritarian difficulties of conventional judicial review pale in comparison. Armed with its new doctrine, the

contents of which would be determined over time, the Court in effect designated itself enforcer of constitutional entrenchment at its deepest level, able now to nullify the results of legislative rule-making even

when such action expressed itself in the exalted form of the constituent power.18

On paper, at least, this breakthrough was enough to vault theIndian Supreme Court to the forefront of the world’s most activist

judiciaries. But precisely because Kesavananda was not about ordinary politics, the actual impact of basic structure jurisprudence was likely

17. For example, Chief Justice Warren selected Baker v. Carr rather than Reynolds v. Sims as

the most important case decided on his Court. While the latter reached the merits of the reapportionment issue, affirming equal population districting as the appropriateconstitutional standard, the earlier case was the necessary foundation for the substantivebreakthrough announced two years later. S.P. Sathe, the noted Indian constitutionalscholar, was ambiguous in ranking Kesavananda and Bommai , saying only that Bommai is the most important and politically significant decision of the Court since Kesavananda Bharati .” S.P. Sathe, Judicial Activism in India: Transgress ing Borders and Enforc ing Limits (New Delhi: Oxford University Press, 2002), 152.

18. I have discussed this in detail in Gary Jeffrey Jacobsohn, “An UnconstitutionalConstitution? A Comparative Perspective,” 4 International Journal of Constitutional Law 460 (2006).





to be experienced more symbolically than tangibly.19 Bommai adaptedthe doctrine for application to the politics of day-to-day governance,establishing it not only as a standard against which the Court could

judge the constitutionality of others’ actions, but also as a touchstonefor directing the course of actions not yet taken. The great challengeof Indian constitutionalism is to deliver on the promise of itstransformative aspirations. That arguably requires a Court performingmore ambitiously than in the familiar nay-sayer role of the orthodox

judicial review model, but also one attuned to the limitations of judicialpower and the hollowness that is so often the fate of the more grandiosehopes for judicial interventions in policy-making.20

If, then, “basic structure” has become, in Granville Austin’s apt phrase, “the bedrock of constitutional interpretation in India”21, theCourt’s decision in the Bommai case to require adherence to itsdoctrinal mandates has enabled the judiciary to become a dynamicforce for principled governance. Perhaps more than anything else,this achievement is the basis for singling it out in this article. A mark of a decision’s ultimate importance is that it both fits within the aspirationalDNA of a constitution and that it elevates the Court as a potentially

vital institutional actor in the realization of the document’s constitutivegoals. Some of these goals will be expressive of the particularconstitution in question, and others – for example, the rule of law –

are included in the identity of any regime governed by constitutionalrules; my discussion of S.R. Bommai v. Union of India will proceed througha discussion of four such essentials: 1) limits on executive power(especially with regard to emergencies); 2) federalism; 3) judicialreview and the policing of institutional boundaries; 4) secularism andthe pursuit of substantive equality.

19. As has been noted, the basic structure doctrine “should be seen as an attempt to identify the moral philosophy on which the Constitution is based.” Salman Khurshid, “The Court,the Constitution and the People,” in Pran Chopra, ed., The Supreme Court Versus the Constitution: A Challenge to Federalism (New Delhi: Sage Publications, 2006), 98. To be ina position to articulate the specific content of this moral philosophy is assuredly a morethan symbolic undertaking, but doing so in a context where the invocation will have a

direct effect on governmental policies ultimately matters more.20. See especially Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social

Change? (Chicago: University of Chicago Press, 1991).21. Granvil le Austin, Working a Democratic Constitution: The Indian Experience (New Delhi:

Oxford University Press, 1999), 258. In his two important books on the IndianConstitution, Austin has organized his thoughts around the three strands of Indianconstitutionalism, which he refers to as its “seamless web”: “protecting and enhancingnational unity and integrity; establishing the institutions and spirit of democracy’ andfostering a social revolution to better the lot of the mass of Indians.” Ibid., 6. If Austinproduces a third volume it’s quite possible that he will see the importance of the Bommai

judgment for its role in advancing the various filaments in this web.



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But first we need to situate the case within two converging strandsof constitutional development.

III. “…in accordance with the provisions of this Constitution….”

i. The Abuse of Power: Institutions

From its earliest days as an independent state, ethno/religious violence has been India’s constant affliction. Nothing that has occurredsince that time can quite rival the horrific bloodletting that accompanied the partition of British India into two states22, but thesubsequent history of deadly inter-communal conflagration is in its own

way comparably appalling in what it reveals about the enduring nature

of divisive group hatreds. Like so much else in India that is jarring inthe magnitude of its incongruities, this history co-exists with a story of democracy that is remarkable for having unfolded as successfully as it has within such a distinctly inhospitable environment.

The story of Bommai is a part of this larger narrative, but of othersas well, including one we might call, “The Taming of Executive Power.”The main character in this second tale is Indira Gandhi, whoseimposition of emergency rule in the nineteen seventies led many toquestion just how enduring the Indian experiment in democracy wouldturn out to be. Critical to her ambitions was reducing the standing of the judiciary as a meaningful presence in Indian politics. One needonly observe recent events in neighboring Pakistan to know that thisundermining of the courts is essential to the accretion of uncheckedexecutive power.

Prominent in her maneuverings towards dictatorial power wasMrs. Gandhi’s deployment of the amendment process to insulatecertain issues from the oversight of judicial review. Much earlier, theSupreme Court had upheld the plenary power of Parliament to amendthe Constitution, in these cases over the claim that the process hadbeen used to deprive landowners of fundamental property rightsguaranteed under the document.23 These rulings stood up rather well

until 1967 and the landmark decision of Golak Nath v. State of Punjab

24

,in which a divided Court announced that duly enacted amendments

22. The destruction of the Babri Masjid mosque in Ayodhya, the event that was the occasionfor the decision in Bommai , comes close. “No other event, barring Partition, in thehistory of twentieth century India has been as cataclysmic to the nation as the ‘religious’rape at Ayodhya on 6 December 1992….” K. N. Panikkar, Communal Threat, Secular Challenge (Madras: Earthworm Books, 1997), 171.

23. Shankari Prasad Deo v. Union of India 1952 (3) SCR 106; Sajjan Singh v. State of Rajasthan 1965 (1) SCR 933.

24. AIR SC 1643 (1967).





could not be permitted to render a constitutional right unenforceable.It was, as one commentator has described it, a case that “began thegreat war…over parliamentary versus judicial supremacy”25 Technically the decision did not invalidate the amendments in question, as theCourt issued a prospective judgment essentially putting Parliament on notice that the days of its amendatory interference with fundamentalrights were over. But the intense political reaction to the Court’s moveleft little doubt that something very important had occurred.

This became glaringly obvious in 1973 with the historic ruling inKesavananda. In essence, the Court – seven of the thirteen participating

judges — affirmed the authority of Parliament to amend constitutionalprovisions involving fundamental rights, while rejecting its authority to place statutes enacted to implement the Constitution’s DirectivePrinciples beyond the power of judicial review. It thus reversed Golak Nath , but narrowly asserted its own authority to invalidate aconstitutional amendment that was in defiance of the “basic structure”of the Indian Constitution. While relenting on its authority to designatespecific provisions as immune from constitutional change, the majority invested the Court with a broader supervisory jurisdiction over thefundamental meaning of the document. In the fashion of Marbury v.Madison , the Court avoided a direct confrontation with thegovernment, yet appreciably strengthened its powers in anticipation

of battles ahead.

The “basic structure” doctrine might not have made it very farbeyond the ruling in this case had it not been for the overreaching of the Indian Prime Minister. Among the first acts of her emergency regime were a series of very controversial constitutional amendments.One of them, the 39th Amendment, prevented any judicial inquiry into the election of the Prime Minister. As one noted Indian legalscholar remarked, “[n]owhere in the history of mankind has the powerto amend a Constitution thus been used”26. Another, the 38th, shieldedfrom judicial review any laws adopted during the Emergency that might conceivably impinge upon fundamental rights. Gandhi’s claim was takenfrom the playbook of the controversial German theorist Carl Schmitt:in essence the constituent power, as an expression of the sovereign

will of the people, was all-embracing and at once judicial, executive,

25. Granville Austin, Working a Democratic Constitution: The Indian Experiment (New Delhi:Oxford University Press, 1999), 198. Or as S.P. Sathe has noted, “Golak Nath marks a

watershed in the history of India’s evolution from a positivist Court to an activist Court.”S.P. Sathe, Judic ial Activism in India: Transgressing Borders and Enforcing Limits , 67.

26. Upendra Baxi , Courage Craft and Contention: The Indian Supreme Court in the Eighties , 70.



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and legislative. It was such an extravagant claim that it accomplished what all previous debate over property-related amendments had not succeeded in doing – establish the legitimacy of the unconstitutionalconstitutional amendment.

The Supreme Court decisively repudiated the 38 th and 39th

Amendments . “The common man’s sense of just ice sustainsdemocracies,”27 wrote one of the Prime Minister’s expected judicialsupporters; the outrage provoked by these travesties must, he felt, begiven due regard in determining the attributes of basic structure. Inparticular, these provisions were a blatant negation of the right of equality and were in sharp contravention of the most basic postulate of the Constitution. Hence, following Kesavananda , they could not stand.

This outcome was reinforced in 1980 with the Court’s decisionin Minerva Mills v. Union of India 28, in which parts of yet anotheramendment, the 42nd, were invalidated in a ringing affirmation of thebasic structure doctrine. The amendment represented Mrs. Gandhi’slast strike at the Court, including the provocative declaration that “Noamendment…shall be called into question in any court on any ground”29. This led one of the judges to invoke “the theme song of Kesavananda ”: “Amend as you may even the solemn document whichthe founding fathers have committed to your care, for you know best

the needs of your generation. But, the Constitution is a preciousheritage; therefore you cannot destroy its identity.”30

Of course, there are many ways to destroy the Constitution’sidentity. In federal systems of governance the attempt to concentratepower in a national executive comes not only at the expense of co-ordinate legislative prerogatives, but also as a challenge to duly electedlocal authority. While Indian federalism was by conscious design lessdeferential to state autonomy than in the United States, it was by allaccounts a basic structural attribute of the constitutional order. IndiraGandhi stands alone among Indian leaders in her frontal assault onconstitutional protections of liberty, yet she shares with all who have

occupied her office the experience of having invoked emergency powers to dismiss governments at the state level.

Article 356, the provision that authorizes these dismissals, hasbeen called “the cornerstone of [the] Indian Constitution,” in that it,

27. Indira Gandhi v. Raj Narain , AIR SC 2299 (1975), 2469.28. 1981 SCR (1) 206.29. Text of the 42nd Amendment.30. Minerva Mills v.Union of India , 239.





according to this view, “constitutes the crux of the entire Centre-Staterelationship”31. Discussion in the Constituent Assembly indicates that the Guaranty Clause in the American Constitution served as its model,although it is also clear that the Indian framers were more inclinedthan their American counterparts to view the provision as a powerfulstatement of the intended dominance of the central government inconstitutional politics. While the delegates to the Assembly could mostly agree that the article would in theory at least have a salutary effect onpreserving the unity and integrity of the republic, strong doubts wereexpressed that it would be implemented for inappropriate reasons.Said one delegate of the holders of national power: “They will

intervene not merely to protect provinces against external aggressionand internal disturbances but also to ensure good Government withintheir limits. In other words, the Central Government will have thepower to intervene to protect the electors against themselves.”32

This worry, as it has turned out, seems in retrospect to be enfoldedin a euphemism. If protecting electors against themselves meansensuring that the ruling party at the Centre maintains its lines of controlat all levels of government, then the experience of more than a half-century clearly vindicates the concerns raised at the Assembly. Since1950, there have been approximately 100 occasions when President’s

Rule has been invoked under Article 356; a substantial majority of them were inspired by partisan calculations, namely to advance theinterests of the party in power in New Delhi.33 In only twelve yearsduring the period 1950-1999 were there no dismissals of Stategovernments. Such a record suggests that the original justification for

31. K. Suryaprasad, Article 356 of the Constitution of India: Promise and Performance (New Delhi:Konishka Publishers, 2001), 4, 246. The key part of the Article reads as follows: “(1) If the President, on receipt of a report from the Governor of a State or otherwise, issatisfied that a situation has arisen in which the government of the State cannot becarried out in accordance with the provisions of this Constitution, the President may by Proclamation – (a) assume to himself all or any of the powers vested in or exercisable by the Governor or any body or authority in the State other than the Legislature of theState; (b) declare that the powers of the Legislature of the State shall be exercisable by

or under the authority of Parliament; (c) make such incidental and consequentialprovisions as appear to the President to be necessary or desirable for giving effect to theobjects of the Proclamation, including provisions for suspending in whole or in part theoperation of any provisions of this Constitution relating to any body or authority in theState.”

32. Statement by Pandit Hirday Nath Kunzru, Constituent Assembly Debates 1949, 155.33. For a detailed breakdown of these instances of President’s Rule, see K. Suryaprasad,

Article 356 of the Constitution of India: Promise and Performance. The official analysis of howPresident’s Rule has been experienced is to be found in the Sarkaria Report , whichrecommended that Article 356 should be used only in extreme cases. Its findings andrecommendations were relied upon extensively in the various opinions in Bommai.



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including Article 356 powers, that they would be used only in thecircumstances of a serious interruption in the workings of thedemocratic process, was in fact wildly unrealistic. It also suggests that the corruption of emergency power was not an extraordinary occurrence, a conclusion whose ominous implications extend wellbeyond the parameters of any given government dismissal. Thus thepoliticization of the process through which distant officials caneffectively overturn a local electoral verdict of the people represents aserious threat to the maintenance of democratic institutions. Against the backdrop of this history, Indira Gandhi’s emergency regime seemsless aberrational than it might initially appear; what she did dwarfs in

its destructive consequences any of the 100 impositions of President’sRule, but many of the latter instances reflect a similar blurring of theline between law and its negation.

ii. The Abuse of Power: Community

The importance of the Supreme Court’s response to Mrs.Gandhi’s perilous amendments is not diminished by the fact that any comprehensive explanation for its actions would have to feature theself-interest of the Court itself. It does, however, raise a question as to

whether its willingness to challenge emergency driven executive actions would pers is t in the absence of any threat to the Court’s owninstitutional interests. This question is underscored by the Court’s passivehistory with respect to Article 356 exercises of power; thus the subject of President’s Rule had, like its Guaranty Clause analogue in the UnitedStates, come to be identified with the judicially conferred status of non-justiciability.

When in 1994 the Court again confronted the issue of theCentre’s dismissal of state governments, it found itself in the middleof a controversy generated by the defining issue of Indian politics –the place of religion within the polity. Precisely because it had survivedits own crisis of institutional maintenance, the Court was now in a

position to engage directly with questions of constitutional maintenancethat implicated the country’s most troubling uncertainties about itsnational identity. But the form that the issue took presented the Court

with a dilemma. If it chose to enter the political thicket of communaldisputation, thereby influencing the manner in which the identity question would be resolved, it could, by upholding an extreme type of executive action, jeopardize its future role in shaping a solution forthis deeply vexed issue.





It was the orgy of Hindu-Muslim violence following thedevastation in Ayodhya that triggered Bommai . The preponderance of the violence occurred in Maharashtra, but it was not from here that the ensuing legal turmoil flowed. Rather, it centered in three states— Rajasthan, Madhya Pradesh, and Himachal Pradesh — only the first two of which had experienced any bloodletting in the aftermath of the temple assault.34 These three jurisdictions had all formed BJPgovernments based on legislative majorities obtained in the electionsof February 1990. Their dismissal by the Central Government of adifferent party was portrayed as a blatantly political act very much inthe spirit of the prevailing Article 356 model. The failure to dismiss

governments in states in which similar incidents of violence hadoccurred, but where, unlike in these three places, there existed acorrespondence between ruling parties at the state and federal level,made the charge eminently plausible. Why do nothing about theCongress-led administration in Maharashtra while deposing thegovernment in peaceful Himachal Pradesh?35 Could there be any doubt that emergency provisions were being selectively administeredto gain political advantage?

The Supreme Court had several clear options. 1) Accept theallegation that the dismissals had been politically motivated, that they therefore constituted an improper use of Article 356 power. 2) Adhere

to established precedent by ruling that imposition of President’s Rule was a “political question” unfit for judicial intervention. 3) Upholdthe dismissals as an appropriate exercise of emergency power in theface of a demonstrated failure to conduct the business of government “in accordance with the principles of the Constitution.” The first option

would of course have historic significance, as it would amount toaffirmation of the principle that even the strongest exertions of executive power are reviewable by the judiciary. But its historicsignificance might well extend beyond its implications for executive/

judicial relations, since it would likely also be read as an acceptance of government-sponsored activities in support of communal violence as

34. On the day that the attack occurred, December 6, the government of Uttar Pradesh wasdismissed by the Central Government. The BJP government in that state had beenheavily implicated in the events leading up to the demolition. The dismissal of the otherthree governments took place on December 15 in response to reports from the threeGovernors that the affairs of State could not be carried on in accordance with theprovisions of the Constitution.

35. There may not have been any violence in Himachal Pradesh, but the Governor’s Report from that state was similar to those of the other two states. In all three places thegovernments had made it very clear that their sympathies, and accompanying acts of support for the activities and ideas upon which the demolition rested, lay with those whohad perpetrated the violence at Ayodhya.



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consistent with the constitutional obligation to govern in accordance with the document’s principles. As such it would, if inadvertently,advance the interests of Hindu nationalism. The second option wouldcast the Court as a complicit partner in a secular cabal determined toresist the rise of this communal threat to established national elitesand their incessant preaching in the self-serving idiom of inclusivepluralism. But it would leave the Court as a passive observer of unchecked emergency power, thus preventing it from building onthe stature it had earned from its earlier defiance of executive over-reaching. Finally, the third option would enable the Court to developits basic structure jurisprudence by articulating a principled grounding

for the rejection of abuses of power that, as in this case, stem from thepredominant ethno/religious will in the community. But unlessaccompanied by an equally principled argument for limiting abuses of power that stemmed from nothing more than the commitment tomaintain power for its own sake, the Court’s rationale for upholdingemergency interventions into the democratic process would risk beingseen as little more than hollow rhetoric, as a convenient rationalizationby one institution of the Centre in support of another.

In the end the Court pursued the third option, although thechoices made by judges are rarely dictated solely by their commitment to principle.36 These choices are available for many reasons, including

the ambiguities present in constitutional language (enhanced in Indiaby the weakness of originalism as a judicial philosophy) and the bundlingof cases into omnibus litigation, both of which were important inBommai. As for the text, the heading for Article 356 reads: Provisions in case of failure of constitutional machinery in States . The Article then goeson to establish the grounds for invoking President’s Rule when theexecutive is satisfied that “the government of a State cannot be carriedon in accordance with the provisions of this Constitution”37. Advocates

36. This should be understood in two senses, both of which are relevant to Bommai. On theone hand, judges often make compromises in order to maximize their desired outcome.If commitment to principle is not the sole determinant of behavior, it still makes senseto think of it as a driving force behind the results in many cases. On the other hand,

judges may also conceal their real objectives – which may be partisan in some cases –behind the rhetoric of principle. I believe the first view applies to the Bommai decision;although it is not surprising that detractors of the judgment will be more impressed withthe second. For example, one constitutional scholar with ties to the BJP wrote: “[T]hey [the Left] had been in the forefront of demands for greater State autonomy andcurtailing the powers of the Union Government. In a surprising somersault, theirhatred and fear of a particular party made them forget their great concern for federalismand demand and justify the dismissal of three State governments on one go by anarbitrary order of the Union Government.” See Subhash Kashyap, Delinking Religion and Politics (Dehi: Vimot Publishers, 1993).

37. The preceding Article 355 is headed: Duty of the Union to protect States against exte rnal aggression and internal disturbance . It then stipulates: “It shall be the duty of the Union





for the dismissed governments emphasized that Union interventioninto the heart of State politics on the basis of a failure of constitutionalmachinery must mean that the only legitimate justification for invoking

Article 356 powers is in the circumstance of a serious interruption inthe workings of the democratic process . Accordingly, a duly electedgovernment can be deposed if, and only if, it is manifestly unable torule in fulfillment of its electoral mandate. But supporters of theUnion’s actions stressed that constitutional machinery was not a termconnotative of process alone, but incorporated the fundamentalprinciples of this Constitution’s provisions. Their reasoning was that the inability to fulfill a mandate is ultimately less problematic than the

fulfillment of one that was anathema to the animating principles of the regime.

These interpretive issues would, of course, have been largely academic if the Supreme Court had chosen to avoid reaching the meritsof the lawsuit. That instead it chose engagement was accommodatedby the fact that the Ayodhya-related dismissal cases arrived at the Court conjoined with three entirely unconnected cases. Bommai himself hadbeen the Chief Minister of Karnataka, whose dismissal was challengedon the grounds that improper procedures had been used to pursueblatantly partisan objectives.38 Such were also the allegations directedagainst the political actors involved in the governmental removals inthe three BJP-run States; in rejecting them while finding merit in theothers, the Court managed a judicial trifecta: establishing criteria forintervention in emergency cases, policing the uncertain boundariesbetween state and central authority, and elaborating the substance of principles fundamental to Indian constitutional identity.

IV. S.R. Bommai v. Union of India

i. Judicial Review

In Marbury v. Madison , John Marshall effectively declared judicialreview to be a part of the basic structure of the American Constitution.The absence of any express authorizing provision was no reason to deny

to protect every State against external aggression and internal disturbance and to ensure

that the government of every State is carried on in accordance with the provisions of this Constitution.”

38. The other cases came from the States of Meghalaya and Nagaland, where similarallegations of impropriety were developed. In Bommai’s case, the Janata Party had formeda government in 1988 under the leadership of S.R. Bommai. Shortly thereafter severalkey legislators had withdrawn their support for the government, which led the Governor(a federal official) to send a report to the President saying that it was inappropriateunder the Constitution to have a State administered by an executive consisting of aCouncil of Ministers that did not command the majority in the House. The KarnatakaHigh Court ruled on the basis of precedent that the materials submitted to the President could not be faulted, despite the many objections that had been raised about them. TheSupreme Court reversed this judgment.



53

the Supreme Court this power if the very essence of a writtenconstitution required its recognition. In India one might think it wouldbe easier to affirm judicial review to be a basic feature of theConstitution, since there is no similar textual deficiency in that nation’sgoverning charter. Yet in a document of some 300 pages thespecification of a particular function can hardly be considered evidencefor its fundamentality. A determination to that effect comes about only

when circumstances reveal the essential value of the function in questionto the constitutional project as a whole. This is what happened inKesavananda, and so the Court had no difficulty declaring in Bommai ,“[j]udicial review is a basic feature of the Constitution.”39

But the Court was quick to distinguish judicial review from justiciability, the former a constituent power that cannot be abrogatedor abdicated, and the latter a self-imposed exercise of judicial restraint,

which until Bommai had been invoked with regularity to upholdPresident’s Rule under Article 356. The American model for thisprovision, its constitutional guarantee in Article IV, Section 4 that statesmaintain a republican form of government, also provided the occasionfor formulating the doctrine that the Court should be careful to avoid“political questions”40. To abolitionists in the United States, the denialof self -government that was at the core of slavery amounted to a failureto secure republicanism in those states supporting that institution; but

the same logic that would likely have kept the Supreme Court fromreaching the merits of any federal intervention under Article IV in theend restrained the hand of the politicians from creating the predicatefor such a case.41 It was similar reasoning that was rejected by the Indian

39. S.R. Bommai v. Union of India , 207. Echoes of Marbury can be heard here. For example:“It is a cardinal principle of our Constitution that no one, howsoever lofty, can claim tobe the sole judge of the power given under the Constitution.” Ibid. There were severalopinions delivered in the case. None is identified as “the opinion of the Court.” Thesequotes are from the opinion of Justice K. Ramaswamy. Unless there are grounds forthinking otherwise, I will refer to “the Court” when quoting from the judgment ratherthan to the individual justice who authored the quote. For example, all of the justicesagreed that the exercise of power under Article 356 was subject to judicial review. Yet they differed as to the extent of that power. When speaking of the latter I will connect arguments with particular justices.

40. Luther v. Borden , 48 US 1 (1849). At the Constituent Assembly debates on theConstitution, Dr. Ambedkar said, “[I] would like to draw…attention to the article in the

American Constitution, where the duty of the United States is definitely expressed tomaintain the republican form of the Constitution. When we say that the Constitutionmust be maintained in accordance with the provisions contained in the Constitution wepractically mean what the American Constitution means, namely that the form of theconstitution prescribed in the Constitution must be maintained.” Constituent Assembly Debates 1949, 175.

41. See William Wiecek, The Guarantee Clause of the U. S. Constitution (Ithaca: Cornell University Press, 1972). John C. Calhoun’s view would in all likelihood have carried the day. “[T]hePresident would be obliged to support any extant legitimate regime.” Ibid., 135.





Supreme Court in Bommai , which did not accept the counter-logic of the slaveholders, exemplified in Calhoun’s intonation:

“Give to the Federal Government the right to establish itsown abstract standard of what constitutes a republican formof government, and to bring the Governments of theStates…to the test of this standard, in order to determine

whether they be of a republican form or not, and it wouldbe made the absolute master of the States.”42

Calhoun’s argument resonates in the sentiments of Bommai ’sdetractors, who thought it “a clear fraud on the Constitution to use[Article 356] for dismissing stable governments with large popularmandates.”43 In similar fashion to the Indian claims made a century and a half later, guarantees of republicanism that were contingent uponthe enforcement of norms of right conduct from the political center

were held to be in essence a contradiction in terms. But unlike in theUnited States, this argument did not prevail. As an Indian scholar of President’s Rule has noted, there is no instance where “the AmericanGovernment has suspended or interfered in a State Government onthe ground that the latter had failed to perform its constitutionalobligation.”44

The difference in the two nations’ approaches goes back toKesavananda . Thus the Indian Court’s linking of “basic structure”limitations on the amending process with Article 356 responses tofailures of constitutional machinery in the states has effectively cast theCentre as a proactive player in the enforcement and explication of theconstitutional essentials of the Indian republic. In contrast, the

American Court, which has studiously avoided all temptations to declarean amendment unconstitutional, has over the years embraced adistinctly positivist emphasis much more congenial to procedure thanto substance. The same deference that must be extended to theconstitutional amendments that emerge from the procedures of Article

V is to be provided to the governments that are elected by popular voting in the states. These alternative judicial perspectives reflect

fundamental differences in conception of the role of the Court asguardian of the official public philosophy. To maintain the requisiteneutrality associated with the liberal state, American judges are as eagerto avoid defining republicanism as their Indian counterparts are toengage that subject under the banner of basic structure.

42. Quoted in Ibid., 219.43. Subhash Kashyap, Delinking Religion and Politics , 37.44. Harbir Singh Kathuria, President’s Rule in India: 1967-1989 (New Delhi: Uppal Publishing

House, 1990), 6.



55

Elaborating standards of right conduct (which in the Indian caseinvolved a showing of how secularism was a critical component of basicstructure) meant, then, resisting the judicial temptation to exercisethe passive virtues. To be sure, a decision to uphold the governmentaldismissals as a political matter not to be questioned by the Court couldhave been accompanied by dictum detailing all the arguments for why the central government’s actions in the Ayodhya-related instances werereasonable and proper. But the import of such an accounting wouldsurely be diminished by its standing as dictum. This perhaps explainsthe Court’s pointing out:

“It will be an inexcusable error to examine the provisionsof Article 356 from a purely legalistic angle and interpret their meaning only through jurisdictional technicalities.The Constitution is essentially a political document andprovisions such as Article 356 have a potentiality to unsettleand subvert the entire constitutional scheme….Democracy and federalism are the essential features of our Constitutionand are part of its basic structure. Any interpretation that

we may place on Article 356 must therefore help topreserve and not subvert their fabric.”45

The Court’s emphasis on the Constitution’s status as a political

document establishes a principled rationale for intervening in thepolitical thicket of emergency power. Thus, “[t]he betrayal of thedemocratic aspirations of the people is a negation of the democraticprinciple which runs through our Constitution”46. Consequently, any interference with self-governance should “both be rare anddemonstrably compelling”47. Mindful of the historic abuses of the

Article’s implementation, the Court explained that self-governanceexpressed itself in India as a pluralist ideal, in which a multiparty systemfunctioning within a regime of federalism was instrumental to theattainment of democratic ends. The party in power will always betempted to solidify its control over the country by eliminating opposition

at the State level. Removing the Government in a State of a different party than that of the rulers in Delhi “is not rare and in fact theexperience of the working of Article 356(1) since the inception of the Constitution shows that the State Governments have been sackedand the Legislative Assemblies dissolved on irrelevant, objectionable

45. S.R. Bommai v. Union of India , 112.46. Ibid., 117.47. Ibid., 116.





and unsound grounds”48. And so:

“[T]he federal principle, social pluralism and pluralist democracy which form the basic structure of ourConstitution demand that the judicial review of theProclamation issued under Article 356(1) is not only animperative necessity but is a stringent duty and the exerciseof power under the said provision is confined strictly forthe purpose and to the circumstances mentioned thereinand for none else”49.

The Court’s reliance on high-minded considerations to open

the door to a supervisory judicial role in dismissal cases wasunaccompanied by unanimity regarding the standards applicable toits review function. Justices differed, for example, over how intrusivethe Court should be in scrutinizing the materials submitted to satisfy the President that a situation had arisen requiring and justifying hisintervention. Should judicial review be concerned with the merits of the decision or be limited to the process by which the decision hadbeen reached? Are there judicially discoverable and manageablestandards for assessing the subjective satisfaction of the President? Thebottom line, however, is that the President’s power under Article 356is a conditioned, not an absolute power, with the burden of proof

resting on the Union Government to prove that “relevant” materialexisted to substantiate any undoing of the people’s electoral decisionat the State level.50 In Karnataka, for example, “[a] duly constitutedMinistry was dismissed on the basis of material which was neither testednor allowed to be tested and was no more than the ipse dixit of theGovernor.”51 Or in Meghalaya, the “prima facie…material before thePresident was not only irrational but motivated by factual and legalmala fides. The Proclamation was, therefore invalid.”52

The discovery of these mala fides provided the Court with thebona fides to uphold the dismissals in Rajasthan, Madyha Pradesh, andHimachal Pradesh. The Governors’ reports from the first two States

48. Ibid., 117.49. Ibid., 118.50. As a comprehensive study of President’s Rule notes, “The scope of misuse of this power

was substantially reduced after the Supreme Court verdict in the Bommai case….Now it becomes quite clear that though the Centre has sweeping powers, it has to act withrestraint and caution.” K. Suryaprasad, Article 356 of the Constitution of India: Promise and Performance , 127. Or, as the constitutional scholar and ex-Attorney General, Soli J.Sorabjee, declared, “[t] he decision in Bommai marks the high water mark of judicialreview. It is a very salutary development and will go a long way in minimizing Centre’sfrequent onslaught on the States….” Quoted in Ibid., 226.

51. S.R. Bommai v. Union of India , 127.52. Ibid., 131.



57

emphasized the connection between official behavior and the limitedpossibilities for stemming the tide of disorder, and in the third thesame sort of evidence was adduced without tying it to any demonstrableinability to preserve public order.53 Among the “relevant” materialsrelied upon to support the findings of a failure to carry on the affairsof government “in accordance with the provisions of this Constitution”

was the election manifesto of the BJP written in connection with the1993 General Elections. Its relevance had less to do with its specificpurpose – the actions at Ayodhya occurred in December 1992 – than

with their insights into the mindset of a party both unrepentant about the recent tragic events and eager to capitalize politically from them.

It attributed the violence and destruction to “the obstructive tactics of the Narasimha Rao Government, inordinate judicial delays and pseudo-secularist taunts.”54 Surely, then, it was relevant, but to what: the properenforcement of the political Constitution as emphasized in variousopinions, or the same partisan impulse that was repudiated by theCourt in the accompanying cases?

The Court, however, also considered earlier party manifestos that had been used to facilitate the rise to power of the targetedGovernments. Prominent in these documents was blatant hostility directed at the minority Muslim community, such that “it was difficult [in the Ayodhya aftermath] for the minorities in the four States to

have any faith in the neutrality of the four Governments” 55. Toreestablish a sense of security for those under attack it was necessary,the Court concluded, that the BJP governments be removed frompower. “[I]t is clear,” wrote Justice J. Reddy, “…that if any party ororganization seeks to fight the elections on the basis of a plank whichhas the proximate effect of eroding the secular philosophy of theConstitution it would certainly be guilty of following an unconstitutionalcourse of action”56.

Also clear is the Court’s (or at least some of its members)commitment to the Constitution as a “social document.” If the politicalconstitution set limits on the President’s exercise of power under

Article 356, the social constitution provides criteria for guiding itsproper application. The secular philosophy of the Constitution is part

53. This evidence included support by the State Governments (including the Chief Ministersand their cabinets) for the kar sevaks who des troyed the mosque at Ayodhya, andmembership in radical Hindu organizations such as the Rashtriya Swayamsevak Sangh(RSS) by the leaders of the governments.

54. S.R. Bommai v. Union of India , 141.55. Ibid., 142.56. Ibid., 236.





of its basic structure; hence by linking the failure of constitutionalmachinery in the States to actions that would encourage the erosionof this critical constitutive attribute, the Court in effect cast the CentralGovernment (of which the Court is of course a key part) as a criticalagent for advancing the constitutional essentials of the polity.57

As I argue in the next section, this linkage’s implications for judicial review and the shaping of public policy in India are potentially far-reaching. Several of the justices explicitly accepted the argument that elected officials had an obligation in word and deed to follow theprovisions of the Constitution.

“The political party or the political executive securing thegovernance of the State by securing [a] majority in thelegislature through the battle of [the] ballot throughout its tenure by its actions and programmes, it is required toabide by the Constitution and the laws in letter and spirit”58.

In context, sentiments of this sort, echoed as well in the opinionsof other justices, amount to more than the boilerplate rhetoric about legal obligation that they might appear on first glance to convey.

First, the reference to programmatic compliance withconstitutional prescription suggests that the aspirational content of the Constitution was intended – or at least has been so interpreted –to establish enforceable standards expressive of a public philosophy

whose content is not subject to the vagaries of electoral politics.59 Todeny that the dismissal of the Government in Himachal Pradesh hadanything to do with partisan politics is unpersuasive; but to argue that the judicial validation of that action is, as some commentators with tiesto the Hindu right alleged, confirmation of the Court’s complicity withthat partisan agenda, is similarly unpersuasive. Pointing out, for

57. The emphasis on essentials is critical. As pointed out by Justice Reddy, “[E]ach and every infraction of [a] constitutional provision, irrespective of its significance, extent, andeffect, cannot be treated as constituting failure of constitutional machinery.” Ibid., 228.

58. Ibid., 172.

59. Upendra Baxi has described the Court’s ruling in regard to non-secular parties and theirprograms as the “peak” of “daring.” Upendra Baxi, “The Avatars of Indian Judicial Activism :Explorations in the Geographies of [In]justice,” in S.K. Verma and Kusum, eds., Fifty Years of the Supreme Court of India: Its Grasp and Reach (Delhi: Oxford University Press,2000), 185. Elsewhere (The Wheel of Law , 144) I have contrasted the Court’s treatment of the election manifesto with Justice Oliver Wendell Holmes’ famous assignment inAbrams v. United States of the Manifesto of the American Socialist Party to a protectedstatus beyond the reach of governmental regulation. This difference, like the variedapproaches to constitutional amendments discussed earlier, bespeaks a philosophicaldisagreement over whether a liberal society can tolerate the endorsement of an officialor public philosophy.



59

example, that violence occurred in places where dismissals did not occur misses the crux of the Court’s constitutional argument, which isthat a “failure of constitutional machinery” might have more to do

with efforts to install a program in conflict with “the provisions of theConstitution” than with the inability to maintain public order.60

Second, the injunction that both letter and spirit of theConstitution require governmental compliance should be understoodagainst the backdrop of the Court’s basic structure jurisprudence. Aspointed out earlier, the Directive Principles of State Policy aretechnically unenforceable by the courts, but the insistence that legislatures abide by the spirit of the Constitution arguably marks a

judicial turning point in the ascendance of these principles intoprovisions of more than hortatory significance. India’s judicial practiceis an example of what Mark Tushnet refers to as “weak-form” review. 61

“Declaratory rights [i.e., directive principles],” he contends, “aremarginally different from non-justiciable rights, in ways that arecontingent upon the place courts have in a nation’s political culture”62.

As discussed in the next section, among the reasons for Bommai ’simportantance is that the jurisprudence upon which it rests has enabledthe Court, for better or worse, to re-position its place in India’s politicalculture, thereby perhaps securing a more than marginal difference inthe political enforcement of rights.

ii. Basic Structure Enhancement

Bommai is best known for its extended discourse on the meaningof secularism as an essential strand in the constitutional amalgam of basic structure. As S.P. Sathe rightly pointed out, it represented “a

warning to the Hindu right and organizations that entertained theidea of a majoritarian Hindu state that any move in that directiontowards constitutional amendment would be considered a violation of the basic structure of the Constitution”63. It was of course the successesof the Hindu right in electoral politics at the State level that led to theCourt cases in Bommai , which in turn insured that a sub-plot in the

eventual decision would feature the topic of federalism. But depending

60. The Court’s argument is, however, quite controversial. According to K. Suryaprasad,“[t]o justify invoking of Article 356 of the Constitution public disorder must be of suchan aggravated form as to result in the failure of [the] entire law and order machinery of the State.” K. Suryaprasad, Article 356 of the Constitution of India: Promise and Performance ,66.

61. Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law (Princeton: Princeton University Press, 2008), 237.

62. Ibid., 240.63. Ibid., 98.





on which of the two converging narratives – emergency power orsecularism – one focuses on, the subordinate federalism theme can becharacterized in quite different ways.

For example, according to Pratap Bhanu Mehta, “[t]he Court’s1994 ruling in the Bommai case made it clearer than before that theremust be ‘substantial constitutional’ reasons for dismissing a Stategovernment, and has led the central government to be warier about imposing presidential rule on the States”64. In this accounting theeffective end to the free rein granted by the Court to nationalauthorities to impose their will in the most extreme fashion on thestates represents something of a triumph for defenders of localgovernance. As framed by the Court,

“The power vested…in the President…under Article356 has all the latent capacity to emasculate the two basicfeatures of the Constitution [democracy and federalism]and hence it is necessary to scrutinize the material on thebasis of which the advice is given and the President formshis satisfaction more closely and circumspectly ….Decentralisation of power is not only [a] valuableadministrative device to ensure closer scrutiny,accountability, and efficiency, but is also an essential part

of democracy.”

65

Concurrent with the theme of State’s rights is another premisethat threads consistently through the various opinions in Bommai . Of the Constitution, “[o]ne thing is clear – it was not a case of independent States coming together to form a Federation as in the case of USA.”66

The point of this comparison is to emphasize that Indian federalismhas a “bias towards [the] Centre,” manifest in many ways, includingthe power given to the Parliament to form new States out of existingStates, and, significantly, the power and responsibility “to ensure that the Government of every State is carried on in accordance with theprovisions of this Constitution”67. Thus, even while limits are imposed

on the Central Government’s use of its emergency powers to prevent it from the singular pursuit of partisan advantage, grounds are

64. Pratap Bhanu Mehta, “The Rise of Judicial Sovereignty,” 18 Journa l of Democracy 70(2007), available at http://www.journalofdemocracy.org/articles/gratis/Mehta-18-2.pdf (last visited April 1, 2008).

65. S.R. Bommai v. Union of India 112, 116.66. Ibid., 215. The Court points out, however, that “even in the United States the Centre

has become far more powerful notwithstanding the obvious bias in that Constitution infavour of the States.” Ibid., at 217.

67. Ibid., 216.



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established for the legitimate implementation of these powers whendeemed necessary for the attainment of objectives essential toconstitutional identity. In Kesavananda , the Attorney General of Indiahad argued:

“[T]he State is under an obligation to take steps forpromoting the welfare of the people by bringing about asocial order in which social, economic and political justiceshall inform all the institutions of the national life”68.

In its decision in that case the Court did not directly affirm suchan obligation, but in establishing the “basic structure doctrine” it created

the constitutional underpinnings for doing so in the future. Bommai rests on the jurisprudence of Kesavananda , but allows for anextraordinary expansion of the authority of “the institutions of thenational life” – perhaps unanticipated in 1973 but consistent with theargument advanced earlier by the Attorney General.

S.P. Sathe captures the distinction very well:

“When a constitutional amendment is challenged [as inKesavananda ], the question for the Court’s determinationis whether it destroys the basic structure. When thePresidential action under Article 356 is examined, theCourt considers whether such action was necessary for savingthe basic structure”69.

The distinction is exemplified in what the Court concludes afterreviewing the disturbing account from Ayodhya:

“The destruction of [the] mosque was a concrete proof of the creed which the party in question [the BJP] wanted topursue. In such circumstances, the Ministries formed by the said party could not be trusted to follow the objectiveof secularism which was part of the basic structure of theConstitution and also the soul of the Constitution”70.

As the narrative in the Bommai cohort of cases turns to secularism,federalism’s bias towards the Centre emerges as the critical variable inmaintaining and furthering the aspirational commitments of theConstitution. “The law was laid down that if a State government actedin disregard of the basic structure of the Constitution, it could be

68. Quoted in Upendra Baxi, Courage Craft and Contention: The Indian Supreme Court in the Eight ies , 91.

69. S.P. Sathe, Judic ial Activism in India: Transgressing Borders and Enforcing Limits , 97.70. S.R. Bommai v. Union of India , 143.





dismissed by the President under Article 356.”71

But what does it mean to act in disregard of the basic structure?Does it require that the State be implicated in some positive way inactions that threaten a basic feature of the Constitution? The officialreports to the President from the Governors of the three suspect Statesincluded evidence pointing to specific activities undertaken by officialsof these governments that challenged, in fairly blatant and obvious

ways, the Constitution’s formal commitment to secularism. The Court’sresponse to these provocations was noteworthy, in that “for the first time the Supreme Court used secularism as a reference for judgingthe validity of State action”72. Yet as significant as this breakthrough

was, its long-term impact would remain indeterminate absent aclarification of the meaning of state action. Were the meaning toincorporate governmental inaction, that is, the failure of a State tocommit itself to a program for achieving the aspirational content of secularism as a basic feature, the impact of the decision could potentially be quite extraordinary.

It is therefore important to take note of the Court’s chosenemphasis in discussing religion and law. “Secularism is…more than a

passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions ”73. Several Justices (Ramaswamy, Reddy, Sawant) wereclear in tying this non-passive sensibility to the deepest of constitutionalcommitments – societal transformation. According to Ramaswamy,

“The Constitution has chosen secularism as its vehicle toestablish an egalitarian social order….Secularism,therefore, is part of the fundamental law and basic structureof the Indian political system to secure to all its peoplesocio-economic needs essential for man’s excellence andof his moral well-being, fulfillment of material prosperity and political justice”74.

71. S.P. Sathe, Judicial Activism in India: Transgressing Borders and Enforcing Limits , 176. Incorrespondence with the author, Upendra Baxi appropriately emphasizes the discretionary aspect of the Court’s ruling. “Bommai specifies criteria whereby elected governments

may not come to or retain power, if they remain profoundly violative of the value of secularism. Their dismissal remains constitutionally sanctioned. But Bommai stops short of casting a constitutional obligation for the exercise of the power to impose a PresidentialRule. It says that the Supreme Court may concur with or veto some forms of the exerciseof this power, but it does not say that the President has any constitutional duty toexercise such power in the face of public truths manifesting ‘communal’ governance (inthe distinctive Indian meaning of this term). Nor does it say that outside this frameworkof governmental power, the Court has any constitutional duty to direct the President tothus act.”

72. Ibid., 177.73. S.R. Bommai v. Union of India , 233.74. Ibid., 170.



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The point’s relevance to the state action issue is more transparent in Reddy’s opinion, where the justice reminds us that Article 356demands State compliance with the provisions of the Constitution , andthat this, following Kesavananda, “take[s] in all the provisions includingthe preamble to the Constitution”75. That language speaks of theresolve of the Indian people to secure the “social, economic andpolitical justice” appropriate to the Constitution’s establishment of a“secular Democratic republic”. Then, quoting from an address givenby one of his predecessors on the Court, Reddy says of the Constitutionthat “

[I]ts material provisions are inspired by the concept of

secularism. When it promised all the citizens of India that the aim of the Constitution is to establish socio-economic justice, it placed before the country as a whole, the idealof a welfare state”76.

It is rather easy to see how this conceptual linkage of secularismand egalitarianism creates constitutional obligations with important interpretive consequences. In addition to the Constitution’s preamble,

Justice Reddy adds that the provisions of the document include thechapters on Fundamental Rights and Directive Principles of State Policy.77

Recall that in the Constitution these Principles were designated“unenforceable by any court,” yet “fundamental in the governance of

the country.” The vagueness of that language was only heightened by the concluding words of Article 37, which stipulated “it shall be the duty of the State to apply these principles in making laws.” Presumably that meant the sanctions behind the provisions in this section were political,an inference supported by Dr. Ambedkar’s observation at the Constituent

Assembly: “[I]f any Government ignores them, they will certainly have toanswer for them before the electorate at the election time.”78

But originalism is not nearly as potent an adjudicative norm as it is in the United States, and so the question is whether an additionalinference is now justifiable, namely that a Government of a State (asopposed to the Centre since we are concerned here about Article

356) will also have to answer for ignoring the Directive Principles in acourt of law. To be sure, the answer to this question depends in part on the results of a debate that had been going on for many years and

75. Ibid., 232. The “preamble is a key to understanding the relevant provisions of theConstitution.” Ibid., at 236.

76. Ibid., 234.77. Ibid., 220.78. Quoted in Durga Das Basu, Introduction to the Constitution of India – 18thed. (New Delhi:

Prentice-Hall of India, 1998), 142.





that often centered on the role that the framers of the Constitutionhad in mind for the Directive Principles of State Policy. In its most familiar form it concerned the proper relationship between thePrinciples enumerated in Part IV and the Fundamental Rights detailedin Part III. In case of a conflict between a right and a principle, whichshould be given priority?79 A strict reading of the constitutionallanguage decides in favor of a right that is enforceable in a court of law over a principle that is not. A less literal account insists on an equality between the two (hence in principle no possibility of conflict), with aharmonizing of right and principle as the objective of constitutionalinterpretation. A third attaches decisive importance to the “duty”

assigned to the state in embodying the Directive Principles in law, andthus holds these provisions to be superior to any specific right with

which they may come into conflict.

At the time Bommai was decided, it was the second of thesepositions that represented the predominant view on the Court.80 Given

79. The question invites one to reflect on the well-known argument associated with thelegal philosopher, Ronald Dworkin. For Dworkin, “taking rights seriously” meansrespecting the connection between principles and rights. This allows one to prioritizerights over policies, since the latter lack the moral weight that is associated with principlesas opposed to utilitarian calculations. But in Indian jurisprudence, rights – even theimportant ones included in Part IV of the Constitution — do not necessarily carry thesame principled significance, so the sort of tradeoff suggested by this query is one that

would be odd when viewed from a Dworkinian perspective. This in turn provokes one toconsider whether Dworkin’s thesis has a more culturally bounded significance than heacknowledges. See Ronald Dworkin, Taking Rights Seriously (Cambridge: HarvardUniversity Press, 1977).

80. For a concise summary of these alternatives, see Sudesh Sharma, Directive Principles and Fundamental Rights: Relationship and Policy Perspectives . The first view was dominant in theearly post-independence years. In a 1951 case, the Court said, “[t]he directive principlesof state policy have to conform to and run as subsidiary to the Chapter on FundamentalRights.” State of Madras v. Champakam Dorairjan , AIR 1951 S.C. 226, at 228. In Golaknath v. State of Punjab , the Court presented the second view, calling for an “integrated scheme[that] was elastic enough to respond to the changing needs of the society.” Golaknath v.State of Punjab, at 1656. “The constitution-makers thought that it could be done and wealso think that the directive principles can reasonably be enforced within the self-regulatory machinery provided by Part III.” Ibid., at 1670. This was, as Sharma notes, asignificant shift, and meant that “the fundamental rights were to be construed in sucha way as to enable the state to carry out the socio-economic obligations contained in the

directive principles.” Sudesh Sharma, Directive Principles and Fundamental Rights: Relationship and Policy Perspectives , 71. The third view was embodied in the 42nd Amendment, whichgave precedence to the Directive Principles over the Fundamental Rights. The Court struck it down, saying, “[t]o destroy the guarantee given by Part III in order purportedly to achieve the goals of Part IV is plainly to subvert the Constitution” by disturbing theharmony that “is an essential feature of the basic structure of the Constitution.” Minerva Mills v. Union of India , 254. The dissenting opinion of Justice Bhagwati presented thethird view: “[t]he Directive Principles enjoy a very high place in the constitutionalscheme and it is only in the framework of the socio-economic structure envisioned inthe Directive Principles that the Fundamental Rights are intended to operate….” Ibid.,325.



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the association of the third and most radical position with thediscredited ambitions of Indira Gandhi, the possibility of its ever beingembraced by the Court would have to be considered remote. But thedoctrine of harmonious interpretation (position 2) may have already provided a sufficiently plausible basis for the further inference of dualliability. Thus the Directive Principles, having acquired a constitutionalstatus of more than hortatory significance, could easily be invoked toestablish legal as well as political accountability. “Any State government,”according to Justice Reddy, “which pursues unsecular policies or anunsecular course of action contrary to the constitutional mandaterenders itself amenable to action under Article 356”81. In conjunction

wi th the developing understanding of posi ti ve seculari sm as acomponent of the egalitarian mandate incorporated in the DirectivePrinciples, the long-term meaning of Bommai ‘s constitutional moment

will be written in the decisions of public officials – both judges andpoliticians - who will or will not succumb to its temptations.

V. Conclusion: American Reprise

“The question here is the consistency of state action with theFederal Constitution”82. More accurately, the question in Baker v. Carr

was the consistency of state inaction with the Federal Constitution, forit was the failure of Tennessee to reapportion its legislative districts on

the basis of population that had caused voters in that state to allege a violation of their constitutional rights. This failure could not, accordingto Justice Brennan, be considered a “political question,” as it involvedthe judiciary’s relationship to the states rather than to a coordinatebranch of the federal government.83 Consistent with precedent, only the latter circumstance should have rightly triggered the Court’sinvocation of a doctrine designed to prevent the justices from reachingthe merits of a case.

The consistency of state action with the Federal Constitution wasalso central to the Indian case, S.R. Bommai v. Union of India . But unlikein Baker , the intervention of the federal judiciary was attributable to

more than a judgment about the appropriateness of entering thepolitical thicket in controversies involving sub-national institutions. Article 356, like the Guaranty Clause in the American Constitution,

81. S.R. Bommai v. Union of India , 298.82. Baker v. Carr , 226. The reference is to a 1901 state statute that called for reapportionment

every ten years (as did the state’s constitution). The constitutional claim in the case wasthat, according to Justice Brennan, “the 1901 statute constitutes arbitrary and capriciousaction, offensive to the Fourteenth Amendment….” Ibid., 207.

83. Ibid., 210.





applies to the Supreme Court’s lateral co-institutions, but this provednot to be a bar against the Indian Court’s direct engagement with thesubstantive issues raised in the dismissal cases. Indeed, the role of theseinstitutions within the basic structure of the Constitution arguably provides an important incentive for a more intrusive judicial presencein the affairs of State.

Lawmaking institutions in the United States are not constitutionally directed to pursue particular social and political ends.They might have been so structured had the logic of the original draft of the Declaration of Independence prevailed, in which government

was inst ituted to “secure… ends .” But, as Morton White hasdemonstrated, the replacement of ends with rights entailed only theobligation to guard rights already enjoyed by the people rather thanto attain ends not yet in their possession. 84 Without a specificconstitutional mandate to direct the policy-making process, thereluctance of the judiciary to encroach upon the prerogatives of thepolitical branches is therefore understandable.

Prudence may advise the exercise of a similar self-restraint by Indian judges, but an inclination to enter where their Americancounterparts fear to tread makes sense in light of the transformationalaspirations and goals that are embedded in Indian constitutional

identity. Bommai became the occasion for the Court to use theameliorative objectives of secularism to adapt the doctrine of basicstructure to the desiderata of ordinary politics. Or, as Upendra Baxihas argued, it has led to the “routinization of the charismatic basicstructure doctrine,” extending its reach well beyond the stated purposeof Kesavananda .85 It has emerged, Baxi maintains, as the “new common law of Indian constitutionalism,” by which he means that it exists as botha canon of constitutional interpretation and a technique of statutory construction.86 How salutary a development this turns out to be remainsto be seen, but that it has the potential to shape in profound ways thefuture course of Indian constitutional development seems no longerin doubt.

84. Morton White, The Philosophy of the American Revolution (New York: Oxford University Press, 1978), 249.

85. Unpublished abstract for a memorial for S.P. Sathe, March 2007. , This assessment iscomparable to one made in connection with Baker v. Carr : “Reynolds [v. Sims] …was anearth-shattering decision, going well beyond what anyone could have anticipated fromthe Court’s holding in Baker v. Carr .” Stephen Ansolabehere and Samuel Issacharoff,“Baker v. Carr In Context: 1946-1964,” available at http://web.mit.edu/polisci/research/representation/baker-edit.pdf (last visited April 1, 2008).

86. Ibid.

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